Retired judge Motata could face impeachment 16 years after drunk driving incident

Retired judge Nkola Motata’s conduct after a drunk driving incident and his subsequent arrest justified impeachment proceedings to begin in parliament.

That was the majority finding in the Supreme Court of Appeal (SCA) on Thursday, 16 years after Motata drove drunk into a house and was later arrested and convicted. A minority on the SCA said the matter should instead be sent back to the Judicial Service Commission (JSC) for reconsideration.

The matter stems from a drunk driving incident in 2007 when Motata drove his car into a house in Johannesburg.

Soon after, various complaints were lodged at the JSC by AfriForum and advocate Gerrit Pretorius. Though the JSC appointed a tribunal to evaluate evidence in 2013, it was only in 2018 that the tribunal made a finding of gross misconduct. It recommended to the JSC that Motata be removed from office and forfeit its lifetime benefits. 

However, in 2019 the JSC, the final decisionmaker, rejected the tribunal’s finding. The JSC said Motata’s conduct constituted only misconduct, not gross misconduct, and fined him about R1m.

The JSC, in its final decision, was not satisfied that racial utterances Motata made at the scene constituted gross misconduct. It also dismissed advocate Pretorius’s complaint because of his relation to another lawyer who sat on the JSC at the time.

At the SCA, Freedom Under Law (FUL) argued that the JSC’s dismissal of Pretorius’s complaint — that Motata had lied about his intoxication — was groundless. FUL said the JSC also did not deal with AfriForum’s concern about Motata’s racial utterances.

FUL therefore asked the SCA to find Motata guilty of gross misconduct.

The JSC, however, argued what is being asked of the SCA would amount to usurping the JSC’s authorised power. The JSC “is not bound by the findings” of the tribunal, the JSC argued. The JSC is the authorised final decisionmaker, it said. 

SCA judge Visvanathan Ponnan slammed the JSC because it “disregarded the purpose for which it was exercising its disciplinary powers [and] shows no regard whatever for the damning factual findings of the trial court and the tribunal”.

Ponnan agreed with FUL that AfriForum’s complaint about racial utterances was “disposed of” with the “filmiest of reasoning”. Ponnan said the JSC’s refusal to deal with Pretorius’s complaint about Motata’s alleged dishonesty concerning his intoxication is an example of it “shirking its duty”.

“Motata’s conduct was egregious,” Ponnan said. “His behaviour at the scene of the incident was characterised by racism, sexism and vulgarity. The public watched him conduct a dishonest defence during his trial and on appeal ... They watched him lie under oath to the tribunal about his level of intoxication, as the video of him slurring his words and stumbling went viral ... For as long as he is entitled to be called ‘Judge Motata’, the judiciary continues to be stained in the eyes of the public.”

Ponnan noted how long the matter has been dealt with, in part because of Motata’s challenges in court and before the tribunal. Sending it back to the JSC for reconsideration means “there is every likelihood” a new decision will also be reviewed and delayed.

Motata’s conduct “is of such gravity as to warrant a finding that [he] be removed from office”, as the tribunal originally found. Therefore the tribunal’s findings should have been followed rather than rejected, Ponnan ruled. As a result, the JSC was ordered to submit a finding of gross misconduct to the speaker of the National Assembly for impeachment proceedings where the matter will be tabled and voted on. The constitution requires a two-thirds majority vote to impeach a judge.

However, if the JSC and/or Motata decide to launch appeal proceedings, the SCA’s order will be suspended pending a decision by the Constitutional Court. 

The National Assembly is dealing with another judge’s  impeachment, that of suspended Western Cape judge president John Hlophe. According to the judicial watchdog Judges Matter, Hlophe’s case has been sent to the justice portfolio committee for tabling. However, Hlophe is seeking other applications in the high court related to funding.

It is uncertain therefore whether Hlophe or Motata would be the first in the country to face an impeachment vote. 

moosat@businesslive.co.za